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CR.A/82/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 82 of 2011
======================================
BHUPENDRABHAI
PUNJABHAI PATEL - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Opponent(s)
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Appearance
:
MS JYOTI MEHTA FOR HL
PATEL ADVOCATES for Appellant(s) : 1,
MR HL JANI ADDITIONAL PUBLIC
PROSECUTOR for Opponent(s) : 1,
None for Opponent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 02/08/2011
ORAL
ORDER
1. The
present appeal, under section 378 of the Code of Criminal Procedure,
1973, is directed against the judgment and order of acquittal dated
21.4.2009 passed by the learned 8th Additional Senior
Civil Judge and Judicial Magistrate First Class, Nadiad, in Criminal
Case No.1786 of 2007, whereby the accused has been acquitted from the
charges leveled against him.
2. The
brief facts of the prosecution case are as under:
2.1 Present
appellant – complainant was having an account with Santram Bank
at Nadiad. Against the said deposits at Santram Bank, which were
under various schemes, a certificate was issued in the name of the
present appellant and his family members amounting to Rs.3 Lacs, on
maturity date, the amount would have fetched to the tune of Rs. 4
Lac. The respondent No.2 – accused issued a cheque No.482710 in
favour of the present appellant on 25.12.2006 of Rs.2,86,447/- of
Indian Bank, Nadiad. The said cheque was deposited with Bank of
Baroda, Narsanda Branch on 17.1.2007, which was returned back with
the endorsement of “Insufficient Fund” on 23.1.2007.
After following due process like notice, the appellant filed
complaint under Section 138 of the Negotiable Instrument Act against
the accused. The same was registered as Criminal Case No.1786 of 2007
before the learned 8th Additional Senior Civil Judge and
Judicial Magistrate First Class, Nadiad.
2.2
Necessary investigation was carried out and statements of several
witnesses were recorded. The trial was initiated against the
respondent No.2 – accused.
2.3 To
prove the case against the present accused, the prosecution has
examined 1 witness and on behalf of defence side, three witnesses
have been examined and also produced various documentary evidence.
2.4 At
the end of trial, after recording the statement of the accused and
hearing arguments on behalf of prosecution and the defence side, the
trial Judge acquitted the respondent of all the charges leveled
against him by judgment and order dated 21.4.2009.
2.5 Being
aggrieved by and dissatisfied with the aforesaid judgment and order
passed by the trial Court, the appellant has preferred the Criminal
Appeal No.49 of 2009 before the Sessions Court, Nadiad. After
considering the record of the case, the learned Additional Judge and
Presiding Officer, 2nd Fast Track Court, Nadiad vide order
dated 15.6.2010 disposed of the Appeal on the ground that the
Sessions Court has no jurisdiction to adjudicate the Appeal.
3. It
is contended by learned advocate Ms. Jyoti Mehta for Mr. Vijay Patel,
learned advocate for the appellant, that the judgment and order of
the trial Court is against the provisions of law; the trial Court has
not properly considered the evidence led by the prosecution and
looking to the provisions of law itself it is established that the
prosecution has proved the whole ingredients of the evidence against
the present respondent. Learned advocate has also taken this court
through the oral as well as the entire documentary evidence. She
further submitted that there are major contradictions between the
deposition of Narhari Reva Shanker of defence witness and his
cross-examination. Said witness deposed that he had given cheque to
the appellant without any knowledge of respondent No.2 –
accused and he also deposed that there was no legal outstanding of
the respondent No.2. This witness admitted in his cross-examination
that he was only accountant of respondent No.2 – accused and he
never issued any cheque without instructions of respondent No.2. Even
the said witness did not produce accounts, which were called upon.
Learned advocate also read the complaint and oral evidence of
complainant at Exhibit 12 and documentary evidence. She also
submitted that learned Judge has not considered both the evidence.
The accused has examined three witnesses and produced documentary
evidence, but the learned trial Judge has wrongly considered the oral
evidence of the defence side and has discarded the documentary and
oral evidence of the complainant. Therefore, the learned trial Judge
has committed grave error in acquitting the respondent No.2 –
accused. She also prayed to allow this Appeal by quashing and setting
aside the judgment and order passed learned trial Court.
4. Learned
APP Mr. Jani submitted that in this matter, the State is a formal
party and he has only assisted the Court.
5. Heard
both the sides and perused the judgment and order passed by the trial
Court. I have also perused the contents of Exhibit 41, certificate
issued by the bank to the complainant and Exhibit 17 Cheque. From the
deposition and cross-examination of complainant at Exhibit 12, it
clearly proves that the complainant has failed to prove legal dues
against the accused. It appears from the admission of the complainant
that he had no fixed deposits in his his own name. From Exhibit 41,
the certificate, it clearly appears that appellant –
complainant has no locus standi to file the complaint. Learned trial
Judge has also considered the issue and the fixed deposits in the
bank, wherein there were name of Vinitkumar, Jalpaben, Nishaben and
Snehalben, who are family members of the complainant. Therefore,
there is no ground on which the complainant has claimed that he has
evidence to say that the said amount, which would be recovered from
the accused, by way of this complaint, his legal dues. Learned trial
Judge has also observed in para 19 of his judgment that in the
cross-examination of the complainant, it was asked to the complainant
that whether the complainant has any evidence of outstanding amount
against the accused and the complainant replied that there is only
cheque for which the complaint was lodged. Therefore, it is clear
that the complainant has no right to file the complaint against the
accused as there was no legal dues against the accused.
6. In
a recent decision of the Apex Court in the case of State
of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75,
the Court has reiterated the powers of the High Court in such cases.
In para 16 of the said decision the Court has observed as under:
“16. From
the aforesaid decisions, it is apparent that while exercising the
powers in appeal against the order of acquittal the Court of appeal
would not ordinarily interfere with the order of acquittal unless the
approach of the lower Court is vitiated by some manifest illegality
and the conclusion arrived at would not be arrived at by any
reasonable person and, therefore, the decision is to be characterized
as perverse. Merely because two views are possible, the Court of
appeal would not take the view which would upset the judgement
delivered by the Court below. However, the appellate court has a
power to review the evidence if it is of the view that the conclusion
arrived at by the Court below is perverse and the Court has committed
a manifest error of law and ignored the material evidence on record.
A duty is cast upon the appellate court, in such circumstances, to
re-appreciate the evidence to arrive to a just decision on the basis
of material placed on record to find out whether any of the accused
is connected with the commission of the crime he is charged with.”
7. Similar
principle has been laid down by the Apex Court in the cases of
State of
Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW
5553 and
in Girja
Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589.
Thus, the powers which this Court may exercise against an order of
acquittal are well settled.
8. It
is also a settled legal position that in acquittal appeal, the
appellate court is not required to re-write the judgement or to give
fresh reasonigns, when the reasons assigned by the Court below are
found to be just and proper. Such principle is laid down by the Apex
Court in the case of State
of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417
wherein it is held as under:
“…
This
court has observed in Girija Nandini Devi V. Bigendra Nandini
Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty
of the appellate court when it agrees with the view of the trial
court on the evidence to repeat the narration of the evidence or to
reiterate the reasons given by the trial court expression of general
agreement with the reasons given by the Court the decision of which
is under appeal, will ordinarily suffice.”
9. Thus,
in case the appellate court agrees with the reasons and the opinion
given by the lower court, then the discussion of evidence is not
necessary.
10. I
have gone through the judgment and order passed by the trial court. I
have also perused the oral as well as documentary evidence led by the
trial court and also considered the submissions made by learned
advocate for the appellant. Thus, from the evidence itself it is
established that the prosecution has not proved its case beyond
reasonable doubt.
11. Ms.
Jyoti Mehta, learned advocate is not in a position to show any
evidence to take a contrary view of the matter or that the approach
of the trial court is vitiated by some manifest illegality or that
the decision is perverse or that the trial court has ignored the
material evidence on record.
12. In
the above view of the matter, I am of the considered opinion that the
trial court was completely justified in acquitting the respondent of
the charges leveled against him.
13. I
find that the findings recorded by the trial court are absolutely
just and proper and in recording the said findings, no illegality or
infirmity has been committed by it.
14. I
am, therefore, in complete agreement with the findings, ultimate
conclusion and the resultant order of acquittal recorded by the court
below and hence find no reasons to interfere with the same. Hence the
appeal is hereby dismissed. Bail bond, if any, stands cancelled.
Record and proceedings to be sent back to trial Court, forthwith.
(Z.K.
SAIYED, J.)
ynvyas
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